Ms L Waller v Swann Engineering Group Ltd: 6017991/2024
EMPLOYMENT TRIBUNALS
Case No 6017991/2024
Between
Ms L WallerClaimantSwann Engineering Group LtdRespondent
Before
Employment Judge Gardiner
Members
Mr M WoodMrs J LandIn person for claimantDate 24 November 2025
JUDGMENT
[1]The Claimant’s constructive unfair dismissal complaint brought under Section 94 Employment Rights Act 1996 is well founded and succeeds.[2]The Claimant’s victimisation complaints brought under Section 27 Equality Act 2010 partially succeed as explained below in the Reasons.[3]The Claimant’s harassment complaints brought under Section 26 Equality Act 2010 are not well founded and are dismissed.
REASONS
[1]The Claimant was employed by the Respondent as a Programme Co-ordinator from 11 April 2022 until 22 August 2024. She had resigned on 22 July 2024, giving one months’ notice. She claims that her resignation was a constructive unfair dismissal, and also an act of victimisation. Her case is that the way she was treated from 5 July 2024 onwards was retaliation for complaining to HR on 5 July 2024 about the conduct of her line manager, Andrew Gregory. That complaint concerns comments allegedly made by him to her that suggesting in a derogatory way that difficulties in concentrating were because she was going through the menopause. She alleges that those comments amount to harassment related to sex.[2]At the start of the case, the parties confirmed that the issues to be decided were as set out in the Tribunal’s case management order made on 8 April 2025.[3]The case has been heard over three days. Evidence was completed on the second day. Submissions took place at the start of day 3. The Respondent relied on written submissions and answered questions from the Tribunal. The Claimant made oral submissions. The Tribunal took the remainder of the third day to deliberate. Further time was then required to finalise the Tribunal’s fact finding and conclusions in the light of the relevant legal principles.[4]Oral evidence was given by the Claimant and by the following witnesses on behalf of the Respondent – Ellie Parnham, Paul Chapman, Jody Crooks and Andrew Gregory. The documents were contained in a bundle of documents which comprised 287 pages. This included witness statements which were gathered by the Respondent after the Tribunal claim had been issued, including from witnesses that were not called to give evidence; and two statements in response from individuals relied upon by the Claimant. The non-attendance of witnesses who were not called to give evidence affects the weight that can be given to their evidence.[5]A further three pages were added to the bundle before the start of oral evidence. The relevant edition of the Staff Handbook was also added subsequently. The Claimant’s application to rely on the metadata of a photo taken of a Post It note was refused for reasons given orally at the time. This had only been raised by the Claimant after the Final Hearing had started. Factual findings[6]The Claimant was interviewed for the role of Programme Co-ordinator by Andrew Gregory, Manufacturing Director. The role involved programming and scheduling work categorised by the urgency of the task. She was successful at interview and started in this role on 11 April 2022, reporting to Mr Gregory.[7]In her Job Description, various duties were listed. These included establishing effective working relationships with key stakeholders in the Business Development, Technical and Operations Teams, building strong relationships with Factory Supervisors, working closely with the HR Manager and building a strong relationship with the HSE Manager. The last bullet point said that she would work towards a managerial role which deputised for the Manufacturing Director (ie Mr Gregory) as their right hand.[8]During her employment, the Claimant would spend around an hour a day with Factory Supervisors discussing the scheduling of works in the factory. This would involve a daily half hour meeting in the morning and then an additional half an hour across the rest of the day. She spent an equivalent amount of time liaising with those individuals in the other roles recorded in her job description. When she liaised with the Factory Supervisors, she would do this in the Board Room, which was next to the office in which she was based.[9]Under her Statement of Main Terms of Employment [79], her hours of work were recorded as 40 hours per week from 07:30 to 16:00 Monday to Friday with an unpaid half an hour lunch break each day. The Statement continued “You may be required to work additional hours when authorised and as necessitated by the needs of the business”. There was no entitlement to contractual sick pay beyond statutory sick pay. The Statement recorded that “should you feel aggrieved at any matter relating to your employment, you should raise the grievance with your Line Manager, either verbally or in writing. Further information can be found in the Employee Handbook”.[10]We do not need to decide whether the Claimant reached an informal agreement with Mr Gregory and HR that she could start work later each day and finish later so long as she completed out her contractual hours. If there had been such an informal agreement at an earlier point in time, then by the time of the events with which this claim is concerned, in 2024, the Respondent had indicated that they wanted the Claimant to adhere to her contractual hours.[11]The Claimant completed her probation period on 14 November 2022. There had been no concerns during her probation period regarding her employment.[12]At the end of December 2022, the Claimant was due to meet with Lisa Hawkins, the Respondent’s HR manager, for a coffee and a catch up, described as “setting you up for success in ‘23”. At that time, the Claimant was dissatisfied that others were permitted to work from home given that this option was not one which was available to her. She said that this was unfair treatment and discrimination and was something that the company should look into [141]. It is unclear whether there was any response to this email. The scheduled meeting was cancelled by Ms Hawkins as she did not want to get the Claimant stressed. It is not clear whether it was ever reinstated.[13]At no stage was there any annual appraisal carried out to assess how the Claimant was performing. This was because Mr Gregory said he was too busy to find the time to carry out such an appraisal, although it seems that annual appraisals were carried out with other staff including staff managed by Mr Gregory.[14]In August 2023, Mr Gregory messaged the Claimant to tell her that he had fought for her in a meeting and “you should get not a bad wage rise and title change” [143]. He persuaded the Managing Director that the Claimant’s improvement had been sustained. However, Mr Gregory was not yet ready to make her a manager [148]. Discussions were ongoing behind the scenes as to the particular package she should be offered. It was decided that she would be given a backdated pay increase as outlined in a letter of 26 October 2023 with the addition of a further review dependent on achievement of a specific task in 6 months’ time. When this was communicated to the Claimant, she was told that the Respondent believed that she was still working towards her being promoted to a manager [164]. This would be reviewed in six months’ time. The Claimant was not happy with how she had been treated in relation to her pay increase. She messaged Lisa Hawkins to say that the delay in awarding her a pay rise had caused her to fall further into debt [165].[15]The Claimant received the wage rise in November 2023. We do not accept Mr Gregory’s explanation for the delay from August to November 2023 as being a payroll error. In fact, it was because of ongoing discussions between HR and Senior Management about the value of the Claimant to the company. Other staff members had received their salary increase in August 2023.[16]Mr Gregory did meet with the Claimant at the end of November 2023 to discuss her current salary and her prospects with the Respondent [174]. There was a discussion about her attitude to work, what she wanted out of the Respondent and about getting to work on time. We accept that the Claimant’s time keeping was thought to be an issue and that was why this was raised with her during the meeting. There had been rumours that the Claimant was thinking of resigning (as indicated by the text exchange on [167]) and this was raised with her by Mr Gregory.[17]In an email to Lisa Hawkins and Jeff Carlton (MD) and Matthew Parrett (CFO), Mr Gregory wrote: “I suggest moving forward with her wage increase with measures in place ie “closer management from myself, regular sit downs with the options of training in the future”. He wrote that “we will see in the not so distant future if she sticks to her word or she lapses into her old ways”. He ended his email by saying: “I still have some reservations but tighter controls will allow me to start the removal process early if we as a management team think it’s not working out”. This was a clear sign that, at that point, Mr Gregory was not entirely convinced that the Claimant had a long-term future with the Respondent.[18]In early 2024, the Claimant experienced some health issues. She underwent tests to check whether the symptoms were due to onset of the perimenopause. This was something that the Claimant shared with Lisa Hawkins in HR and with Mr Gregory as her line manager. These ultimately proved negative and that assessment was also shared with Mr Gregory.[19]On 26 March 2024, Lisa Hawkins sent an email referring to the Claimant’s potential pay increase which was due to take effect on 25 April 2024. She said: “as far as Mr Gregory is concerned, she is on track and doing everything he asks of her”. In response, Jeff Carlton, the Respondent’s Managing Director sent an email about a presentation that was due to be made on 8 April 2024 about a Strumis system [188]. His email recorded that “this has been delayed twice due to a lack of progress – much of this is down to Lucie’s failings. Andy has regularly voiced issues with Lucie to me”. This was just short of the two-year anniversary of the start of her employment. By that stage it did not seem that the issues were sufficiently serious to warrant the Respondent terminating her employment.[20]On 9 April 2024, the Claimant was informed by letter that her basic salary would be increased from £33,500 to £35,000 with effect from 1 April 2024 [196]. The letter described her achievements as follows: “This is to recognise your achievement of the stretch targets we agreed last year;• The effective, on time delivery of Strumis, a steel fabrication management software, into our Maldon Factory• Handover of Strumis training for Braintree to the Quality Standards Officer with on going support as the SME• The coaching of more junior team members and first appointment Supervisors at Maldon• Reducing and maintaining manufacturing lead times All of these targets remain 'live' projects and require your on- going attention but I am happy that you have worked hard and focussed on getting each of them to a good standard in line with our agreed deadline, well done. May I take this opportunity to thank you for your valued efforts, congratulate you on your salary increase award and ask that the content of this letter is kept in the strictest of confidence.”[21]This was confirmation that Mr Gregory’s view that the Claimant was on track and was doing everything that he asked of her had prevailed and therefore she was entitled to the projected pay rise of £1500.[22]We come now to events on 3 June 2024. This is the date on which the Claimant alleges she was subjected to two comments made by Mr Gregory that she alleges amount to acts of harassment related to sex. The Claimant alleges that the Claimant said to her “Is someone going through the change?” thereby referring to the menopause. Later, on the same day, he is alleged to have made the following comment in a busy open plan office: “You’re just acting that way because you’re going through the change”. Mr Gregory accepts that there was a discussion on this date about the menopause but says that this was initiated by Ellie Parnham. Ms Parnham gave evidence but could not recall any conversation about the menopause involving the Claimant and Mr Gregory on 3 June 2025.[23]Ms Parnham was the Respondent’s Health and Safety Officer. She had experienced various symptoms as she herself was going through the menopause. In her role as Health and Safety Officer, she had chosen to be open about the symptoms she was experiencing. This was to encourage others to speak up about their experiences with the menopause and to create an office environment where those with menopause symptoms were better supported. As a result, we find that it was not unusual for menopause issues to be raised in office conversations. As already mentioned, the Claimant herself had shared with Mr Gregory that she had undergoing tests to see if the perimenopause had started in her case. These tests were negative. She had shared that outcome with Mr Gregory.[24]In that context, we find that the Claimant probably lost her train of thought when discussing something with Mr Gregory in the first of the conversations to which the Claimant objects. He responded with words along the lines that the Claimant was alleging. This was not intended to upset the Claimant and Mr Gregory did not expect that this would be the reaction. The Claimant was not visibly upset and that is why Mr Gregory made a similar comment later in the day. The combination of the two comments, at a time when she was coming to terms with the recent discovery that she was pregnant in an unplanned pregnancy, caused her to go to the ladies toilet when she became upset and emotional. She did not answer back to Mr Gregory or share with him at the time that she had become upset. Although the exchanges took place in the open plan office, they were not witnessed by other members of staff. That is why the only witnesses were the Claimant and Mr Gregory and why Mr Gregory cannot remember making such a comment.[25]As mentioned in the previous paragraph, around this time, the Claimant discovered that she was in the very early stages of pregnancy. Shortly thereafter, very sadly, the Claimant miscarried. She shared this with Jody Crooks on 6 June 2024, who had only just started as HR Manager on 3 June 2024.[26]We have seen a series of Teams messages that took place between 7 June and 10 June 2024 [201]. At 09:31 on 7 June 2024, the Claimant messaged Ms Crooks, writing “Thank you for being so kind”. Ms Crooks replied: “I wanted to make sure you got home safely”. This was a Friday and in a later message Ms Crooks wished her a restful weekend. The Claimant acknowledged this message with a love heart. On Monday 10 June 2024, the Claimant messaged at 08:40 to say she had a doctor’s appointment at 10am. Ms Crooks replied saying she hoped the appointment went well. She followed up with a further message later that day saying she hoped everything went well at the doctors and that she was starting to feel better. The Claimant recorded her absence that morning as half a days’ unpaid leave. Ms Crooks offered to chat with her, adding “or if you need anything else, don’t hesitate to reach out”. The Claimant said she was probably going to call the healthcare chatline, “but thank you again”.[27]On 13 June 2024, Ms Crooks messaged again asking the Claimant how she was and whether she had spoken to someone at the healthcare chatline. The Claimant responded that she had chosen to discuss it with Ellie Parnham, one of her work colleagues, instead. She acknowledged she was upset and had been getting into bed soon after she had got in from work each day. Ms Crooks responded in an empathic way, encouraging her to speak to someone she could confide in.[28]On 20 June 2024, Ms Crooks emailed the Claimant on the subject of the company’s dress code [208]. She wrote she was following on from a conversation with Andrew Gregory. She recorded that flip flops and/or sliders were not acceptable and asked the Claimant to change her footwear to ensure it was in line with company policy. She warned the Claimant that failure to follow company procedures could result in further action being taken.[29]In response, the Claimant said she had not had a conversation with Mr Gregory about dress code. She explained she had two severely painful big toenails which made wearing shoes almost impossible. She could not afford to buy new shoes until payday and asked to be able to wear trainers until then. Ms Crooks asked the Claimant to provide a doctors’ letter with any recommendations as to footwear. She said that flipflops were not acceptable and should be changed with immediate effect. The Claimant could wear smart black trainers until she was paid on Friday but from Monday 1 July 2024 the correct footwear must be worn. A failure to do so could result in further action being taken. The Claimant replied that she had not gone to the doctor as this would be a waste of time. She said that both Jess (another colleague) and Mr Gregory wore trainers every day. She asked why it was okay for Jess to do this and not her. She suggested that the way she was being treated was discriminatory.[30]She then included the following paragraph: “Please can I also ask the company policy on raising a grievance please, I waiting on a response from acas if it is classed as discrimination on a protected characteristic or bullying but it is from my line manager so I cannot raise it with him?”[31]The Claimant’s case is that this was a reference to the grievance she intended to make against Mr Gregory for the comments he had made about menopause. We accept that this was the case although it was not clear from the choice of wording used what the subject of the grievance would be, apart from the fact that it concerned the conduct of her line manager, Mr Gregory. We accept that the Claimant was consulting ACAS about how to proceed in her relation to her perception of what Mr Gregory had said.[32]Ms Crooks responded, addressing Jess’s approach to the dress code, and whether it was a waste of time for the Claimant to seek medical advice. She said this about raising a formal grievance: “If you would like to raise a formal grievance, full details can be found on Sage HR in the company handbook. If you need further guidance, please do not hesitate to contact me. If you would like to raise your concerns with me regarding a grievance you would like to raise, we can discuss this together confidentiality to understand your concerns in more detail.”[33]She also included a link to ACAS Guidance on Discrimination Claims.[34]On 21 June 2024, Mr Gregory sent an email to all of his team headed “Team Communication”. It was regarding timekeeping and business attire [210]. He noted that “it has been reported that several employees in my team are arriving and starting work late and leaving earlier”. The identities of the other employees were unclear.[35]On the same date, 21 June 2024, Ms Crooks asked IT to track the Claimant’s working hours. She wrote “an employee in the business who works remotely at times does not appear to be working her contractual hours” [212]. She asked for records on the Claimant from 1 April 2024. It is not clear why IT were not asked to track the working hours of other employees if several employees had been arriving late and leaving early. We infer that she had been instructed to do this by Mr Gregory, given that he had sent an email to his department on that subject early the same morning.[36]On 26 June 2024, Ms Crooks messaged the Claimant to say “Just to give you the heads up before it is addressed with me again … we agreed that black smart trainers are to be worn until Friday and not white trainers. Could you please ensure you wear the agreed footwear” [214].[37]Early on 5 July 2024, the Claimant messaged to say she had a doctor’s appointment at 10am. We infer that this was to seek medical advice in relation to stress, given the messages sent later that morning. She also alerted Ms Crooks that she had a medical examination on 16th July. At 11:35, Ms Crooks messaged as follows: “Hi Lucy, someone has come to me to raise your lateness in the business and it is causing some frustration with team members. Just a friendly note [smiley emoji] - my recommendation would be to ensue you are at your place of work and ready to work on your start time and don't leave before your finish time before it is reported higher and they ask for disciplinary action to be considered. Sorry, i pressed sent before i finished regarding the lateness for today, please ensure the time is made up and just let me know when you do so i can feedback. Personally i think we are all adults and we can manage our time and personally i am not one for tracking and managing unless we are not being honest and taking advantage.”[38]The Claimant sent a lengthy response. She said she had spoken to her GP regarding her mental health that morning. Her GP wanted to sign her off work with stress. She told Ms Crooks she could not afford to live on sick pay so could not do that. She added the following: “I would like to raise a formal complaint against Andy Gregory who is making me anxious and upset to come into work. I have now been keeping notes of dates times and witnesses, twice in the last week he has made comments directed at my weight and on two separate occasions in the last month made comments about me going through the menopause … as I am sure you’re aware this falls under the protected characteristics, and the weight does not but is still not what I’d expect in a workplace and its upsetting for these comments to be made to me in front of many people and its severely impacting me with its frequency. My issue with bringing this up is the last time I spoke to him directly about his behaviour towards me I got the silent treatment for about 2 months which again makes an awkward atmosphere to work in”.[39]We do not make any findings about whether Mr Gregory had made any comments directed at the Claimant’s weight. We do not need to do so and we have not heard sufficient evidence on this topic.[40]The Claimant then included the following response about the suggestion that she had been coming into work late: “Also regarding [coming into work] I do always make up the time I never leave early and it was a verbal agreement with myself Andy and HR that as long as I completed my work hours this wasn’t an issue. As we close early today, I will do the extra 35 minutes on Monday”.[41]In her response, Ms Crooks focused on the timekeeping issue. She drew a distinction between her personal view and the contractual position. Whilst she felt that so long as the hours were worked there was no problem, she recommended that the Claimant should be at her place of work for her contractual start time and should finish at her contractual end time. She said that this would reduce any issues in the workplace. Rather cryptically she also messaged “FYI it isn’t Andy coming to me regarding your behaviour in the work place”.[42]The only reference to the Claimant’s grievance was as follows: “If you want to come down and chat about how you are feeling at work and your grievance, please feel free and we can see what we can do together to support you”.[43]We find that Ms Crooks spoke to Mr Gregory at some point during the afternoon on 5 July 2024 to report to him that the Claimant had messaged to refer to a formal grievance about comments Mr Gregory had made about the menopause, which she thought amounted to unfair treatment based on a protected characteristic. Mr Gregory’s reaction, as he told the Tribunal, was that this was “abhorrent”. We find that it is unlikely that there was a detailed discussion between the Claimant and Ms Crooks on 5 July 2024, contrary to Ms Crook’s recollection. This is likely to have taken place on 8 July 2024 as explained below.[44]On Monday 8 July 2024 at 07:51, Ms Crooks messaged “Morning, I am not sure if you are at work today but I wanted to check in to see how you was feeling”. The Claimant responded: “Hi Jody, I’m here, my teams just doesn’t automatically load up when I switch my computer on”. This was interpreted by Ms Crooks as the Claimant assuming she was checking on the Claimant’s timekeeping. In her response, Ms Crooks added “I am really not a person to check peoples times”. This was half true – this may have been her personal stance but, as set out above, at Mr Gregory’s instigation, she had initiated an investigation into the Claimant’s timekeeping. The Claimant told Ms Crooks “I feel awkward tbh. I’m guessing has been told as I am getting the silent treatment again”. Ms Crooks responded at 08:05: “I haven't spoken to Andy. Do you want to come and have a chat because i have different stories from both. Andy speaks highly of you and tells me how well you do in meetings etc. Listening to both, could there be a breakdown of communication and understanding?”[45]It was not correct that Ms Crooks had not discussed the proposed grievance with Mr Gregory. He had. We accept that Mr Gregory had been treating the Claimant differently since he had learnt from Ms Crooks that the Claimant was considering bringing a grievance against him. Whereas he was being friendly to other staff working in the office, he was behaving differently to the Claimant. He had been ‘cold shouldering’ her.[46]The Claimant went and spoke to Ms Crooks. This conversation took place around nine o’clock on the morning of 8 July 2024. We can be confident of this approximate time because when she finished speaking to Ms Crooks the Claimant messaged her friend Emini Jaggan-Hilton. It is likely that the handwritten note found at [277] was written by the Claimant shortly after the end of this meeting. The note reads: “Have you ever shared personal information in the office? If you do it gives people the opportunity to discuss things with you so say about you. Perhaps you should look for a new job if this is making you unhappy or if you don’t see yourself progressing here. If you get signed off on stress, just don’t pay your rent if you can’t afford it.”[47]This was the Claimant’s summary of what was discussed in this meeting. We accept that this was a wide-ranging discussion that covered the Claimant’s current unhappiness at work, her concerns at how she perceived she had been treated by her line manager Mr Gregory, her health and her financial situation. We accept that the prospect of seeking a new role elsewhere was raised by Ms Crooks in the context of a discussion about the Claimant’s unhappiness with aspects of the current role. This was done to support the Claimant to consider all available options without any pressure being applied. We also accept that Ms Crooks suggested that personal issues might be discussed in the office if they were topics that the Claimant had previously raised with her colleagues. She also suggested that it was important for the Claimant to follow medical advice and take time on sick leave if that was the recommendation so as to look after her welfare. Based on her own experience as a landlord, she indicated that it was unlikely that a landlord would be able to evict her in the near future if she did not pay her rent. She left the Claimant to decide whether to resolve the grievance informally, get her involved in a mediated meeting with Mr Gregory or to pursue a formal grievance. Ms Crooks did not say that the Claimant must raise the issue herself with Mr Gregory or say that she herself was not willing to speak to Mr Gregory.[48]At some point, on an unspecified date, Ms Crooks sent the Claimant a detailed email [219]. This was to confirm the contractual position in the light of what they had discussed. The three topics covered by the email were “Dress Code”; “Place of Work” and “Working from Home/Working Hours”. So far as the latter point was concerned, she reiterated the Claimant’s contractual working hours. In relation to each of the three topics, she restated the contractual position adding words to the effect “if you have [an alternative arrangement] detailed in your contractual paperwork, please share this with me and we can review this again for you”. She ended the email by adding “I have copied Andrew [Gregory] into this email for full transparency of the contractual status”.[49]The email made no reference to formal grievance that the Claimant had referred to in the earlier Teams message.[50]On another unspecified date, Ms Crooks sent Mr Gregory the details she had been provided by the IT team regarding the Claimant’s hours, with a copy to Mr Carlton. The email was headed “Lateness Record” [221]. It recorded ten dates between 10 May 2024 and 26 June 2024 when the Claimant had signed on late. It did not include any dates from April 2024. The email started “Following on from our conversation regarding [the Claimant] and your concerns of her lateness …”. Having set out the dates, and suggested that “the start times where Lucie has logged on over an hour late could be where the Claimant has worked from Maldon”, she then added: “If you would like to address the above with Lucie, we can do so by: Option one You can address Lucie’s lateness in an informal chat and bring the above to her attention and advise if it continues, then you will follow the disciplinary process for lateness. Option two Start the disciplinary process for lateness with Lucie to address her lateness. I can manage the disciplinary process with alternative members of the team to allow you to focus on the factory reorganisation. My recommendation would be to follow option two, to begin the process and to make a record of the formal process and therefore any further incidents we can follow on any warnings that may be issued.”[51]Her recommendation was to start what she described as a disciplinary process. Ms Crooks did not indicate in this document that there may have been a delay between the Claimant arriving at work and logging onto her computer. She did not contemplate that there may be good reason for the Claimant arriving at work late, particularly given that the Claimant had been experiencing health issues in June given the levels of stress she had been experiencing and the aftermath or her miscarriage. The email made no reference to any other current concerns about the Claimant’s performance.[52]On 11 July 2024, Mr Gregory emailed Ms Crooks indicating he would like her to be situated in the supervisor office in factory 3. He also suggested some changes to her responsibilities [223]. “Hi Jody Moving forward with Lucie I would like her to be situated in the supervisor office in factory 3. Her responsibilities to include: 1- Day “Strumis” implementation either at the Braintree facility or Maldon depending on project requirements and with sign off from the Strumis lead (Ian Pack) 1- Day “Strumis training with Thomas Cadeddu and Jess Regan 3 days working closely with Michael Simmons and Tim Western on the new Swann silo programme and rejuvenating the manufacturer tracker. She would have to take meetings within the five-day period as handovers irregular. Her extracurricular involvement in recruitment and HR could be looked at depending on needs of the business.”[53]In evidence, Mr Gregory confirmed that he was not suggesting a five-day training plan. Rather, this was how he envisaged the shape of the Claimant’s working week. However, the Claimant was never issued with a new Job Description to confirm this.[54]On 11 July 2024, in response to Mr Gregory’s email of 11 July 2024, Ms Crooks thanked Mr Gregory for the information he was providing, saying she would add this to the Performance Review Plan [222]. She said she would recommend expanding it further adding “the objectives she has not been performing in her role which will support our case further”. Ms Crooks was not able to provide a convincing explanation for the choice of the phrase “support our case further”. It is not a natural way to speak of a supportive process, which is what the Respondent contends was intended by implementing a Performance Review Plan. It is apparent from this email that a Performance Review Plan had been under discussion for a period before this email. No documents have been disclosed indicating an earlier draft of this document. It is unclear when a decision was taken to instigate a Performance Review Plan.[55]On Friday 12 July 2024 the Claimant was absent on sick leave because of her mental health. The return-to-work meeting record [225], carried out by Ms Crooks on Monday 15 July 2024 recorded that the Claimant had been prescribed antidepressants and had been referred for counselling.[56]On 15 July 2024, Ms Crooks met with the Claimant. She told the Claimant she would be invited to a Performance Review Meeting. The issues with her performance were set out in a letter which was sent to her by email [228]. The covering email also told her that they believed that it would be beneficial to work from the factory office “for a streamlined communication path with the aim to reduce the communication issues we are currently facing”. This was located about a minute’s walk away from the office in which she had been working. It was in a room that was used at points during the day by the Factory Supervisors primary to use their laptops. They would spend much of the day in the factory itself, which was adjacent to the factory office, separated only by a fire door.[57]The factory was a noisy and dirty environment. It was used to assemble steel structures that were welded by a team of welders. All those working in the factory were expected to wear PPE. This included ear protectors to guard against the loud noise; and LVE masks to guard against the welding fumes. The factory supervisors would regularly come into and out of the factory office through the fire door. When the door was open, the sounds from the factory would be clearly audible. In addition, the fumes and dust from the factory could be carried into the factory office – either if airborne when the fire door was open and closed or (we infer) on the overalls worn by the staff entering and exiting the office.[58]The attached letter was titled “Formal Capability Meeting”. It asked her to attend a meeting on 18 July 2024 to discuss her performance. Four issues were identified – “Attendance and Lateness”; “Succession Planning and Training”; “Attention to Detail”; and “Managing and taking leadership with the recruitment needs in the factory department”. The letter said “We would like to state that this is not a disciplinary hearing and there is no suggestion of any misconduct … However, this procedure is similar [to a disciplinary process] and if we do not see an improvement in your performance, the disciplinary process may be followed”. We have checked the Respondent’s Capability Procedure in the Staff Handbook. That appears to contemplate a different situation where there is an ongoing health issue which is impacting on attendance at work.[59]On 16 July 2024, Mr Gregory instructed the Claimant in an email to move her office equipment down to the factory office the following day [227]. On 17 July 2024, the Claimant moved down to the factory office. There had been no discussion between her and Mr Gregory about the particular reason why this office should be chosen, given that there were other options near the factory which would have potentially been quieter.[60]The Claimant worked in the factory office on 17, 18 and 19 July 2024. She found that it was a very difficult place in which to work given the noise, the fumes and the smell, as well as interruptions when people entered and exited the office.[61]At the meeting on 18 July 2024, she was handed a six-page document. This was the first time that she saw the detail of the respects in which her performance was considered as requiring improvement. On the first page, she was provided with a table showing her sign on times and sign off times on fourteen occasions between 10 May and 26 June 2024. The table purported to show that the Claimant had not been working her full contractual hours. The following text was included at the bottom of this section, which was added during the course of the meeting: “Line manager confirmed that the above are not all late as at times at Maldon or got a task – going forward will log on at the start time before taking on tasks.”[62]It did not specify which were still regarded as late without good reason. In relation to other sections, further comments were also added. The Claimant was not provided with SMART objectives setting out clearly what was expected and the timescale over which improvement needed to be shown. Many of the review dates are left blank. The document appeared to tail off in that the last section was left blank. It is unclear whether further steps would be taken after the meeting to formalise this document in a more constructive and formal record. There is no evidence that the Claimant was told at the end of the meeting that this would be done.[63]On Monday 22 July 2024 the Claimant submitted a letter of resignation. She worded it as follows: “Unfortunately, I do not feel like I have been left with any choice as the company have failed to deal with my grievance of sex discrimination and bullying in the workplace adequately, have been therefore unable to provide me with a safe place to work and have breached my contract of employment. My position within the business is now untenable. I have sought advice from ACAS who have advised me to submit my resignation on the grounds of constructive dismissal.”[64]She also submitted a fit note signing her off work for two weeks. She was away from work during that period. When the sick note expired, she did not return to work. Nor did she provide a further sick note to excuse her absence. Accordingly, during the last fortnight or thereabouts of her employment she was absent without permission.[65]The following day, Ms Crooks emailed her to ask her to reconsider her resignation. She said that she would like to arrange a grievance hearing to formally discuss the issues raised in the resignation letter.[66]The Claimant did not choose to reconsider her decision to resign. She did not respond to the suggestion that there would be a grievance hearing to discuss the issues raised in the resignation letter.[67]Since the Claimant’s resignation, the Respondent has not replaced the role performed by the Claimant. The Respondent has been able to carry out her various responsibilities by redistributing them to existing team members. We were told that there had been some restructuring of various roles. Issues to be decided The numbering below relates to the numbering in the List of Issues sent to the parties following the Preliminary Hearing on 8 April 2025. Constructive unfair dismissal2.1 Was the claimant dismissed when the claimant resigned on 22 August 2024?2.1.1 Did the respondent do the following things:2.1.1.1 On 3 June 2024 Mr Gregory, the Claimant’s line manager, made the following comment to her: “Is someone going through the change?” thereby referring to the menopause.2.1.1.2 Later on 3 June 2024, Mr Gregory, made the following comment in a busy open plan office “You’re just acting that way because you’re going through the change”.2.1.1.3 When the Claimant reported Mr Gregory’s conduct to Ms Crooks in HR, during a conversation on 5 July 2024, Ms Crooks instructed the Claimant to raise this issue herself with Andrew Gregory. She said she was not willing to speak to Mr Gregory about this herself on behalf of the Claimant [The Respondent accepted that if, as we have found, this conversation took place on 8 July 2024, this was still an issue requiring a decision].2.1.1.4 On 5 July 2024, Ms Crooks told the Claimant that if she was depressed then she should sign herself off work or look for another job [The Respondent accepted that if, as we have found, this conversation took place on 8 July 2024, this was still an issue requiring a decision].2.1.1.5 On 15 July 2024, the Claimant was summoned to a meeting with Andrew Gregory and Jodie Crooks and told that she was being put on a PIP based on the recorded time at which she had logged onto her computer at the start of the working day. The implication was that she had been regularly starting work late and not completing her allotted hours.2.1.1.6 On 18 July 2024, the Claimant was told that she would have to move to an office next to the workshop which was noisy and smelly [The Respondent accepted that it had to deal with the substance of this allegation, namely the circumstances of the move to the factory office, even if this was first communicated on a different date to the date set out in the List of Issues].2.1.1.7 The Respondent failed to deal with the Claimant’s grievance at any point before the Claimant’s resignation on 22 August 2024.2.1.2 Did that breach the implied term of trust and confidence? The Tribunal will need to decide:2.1.2.1 whether the respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent; and2.1.2.2 whether it had reasonable and proper cause for doing so.2.1.3 Did the claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the claimant’s resignation.2.1.4 Did the claimant affirm the contract before resigning? The Tribunal will need to decide whether the claimant’s words or actions showed that they chose to keep the contract alive even after the breach.2.2 If the claimant was dismissed, what was the reason or principal reason for dismissal - i.e. what was the reason for the breach of contract?2.3 Was it a potentially fair reason?2.4 Did the respondent act reasonably or unreasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that reason as a sufficient reason to dismiss the claimant?2.5 The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case. 4. Harassment related to sex (Equality Act 2010 section 26)4.1 Did the respondent do the following things:4.1.1 On 3 June 2024 Mr Gregory, the Claimant’s line manager, made the following comment to her: “Is someone going through the change?” thereby referring to the menopause.4.1.2 Later on 3 June 2024, Mr Gregory, made the following comment in a busy open plan office “You’re just acting that way because you’re going through the change”.4.2 If so, was that unwanted conduct?4.3 Did it relate to sex?4.4 Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?4.5 If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. 5. Victimisation (Equality Act 2010 section 27)5.1 Did the claimant do a protected act as follows: 5.1.1 on 5 July 2025, complain verbally to Jody Crooks that the comments made about her by Andrew Gregory on 3 June 2025 amounted to sex discrimination.5.2 Did the respondent believe that the claimant had done or might do a protected act?5.3 Did the respondent do the following things:5.3.1 On 3 June 2024 Mr Gregory, the Claimant’s line manager, made the following comment to her: “Is someone going through the change?” thereby referring to the menopause.5.3.2 Later on 3 June 2024, Mr Gregory, made the following comment in a busy open plan office “You’re just acting that way because you’re going through the change”.5.3.3 When the Claimant reported Mr Gregory’s conduct to Ms Crooks in HR, during a conversation on 5 July 2024, Ms Crooks instructed the Claimant to raise this issue herself with Andrew Gregory. She said she was not willing to speak to Mr Gregory about this herself on behalf of the Claimant.5.3.4 On 5 July 2024, Ms Crooks told the Claimant that if she was depressed then she should sign herself off work or look for another job.5.3.5 On 15 July 2024, the Claimant was summoned to a meeting with Andrew Gregory and Jodie Crooks and told that she was being put on a PIP based on the recorded time at which she had logged onto her computer at the start of the working day. The implication was that she had been regularly starting work late and not completing her allotted hours.5.3.6 On 18 July 2024, the Claimant was told that she would have to move to an office next to the workshop which was noisy and smelly.5.3.7 The Respondent failed to deal with the Claimant’s grievance at any point before the Claimant’s resignation on 22 August 2024.5.3.8 Resign on 22 August 2024 in circumstances amounting to a constructive dismissal.5.4 By doing so, did it subject the claimant to detriment?5.5 If so, was it because the claimant did a protected act?5.6 Was it because the respondent believed the claimant had done, or might do, a protected act? Relevant legal principles Burden of proof under Equality Act 2010[68]Section 136(2) of the Equality Act 2010 is worded as follows: (2) If there are facts from which the Court could decide in the absence of any other explanation, that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred; (3) But subsection (2) does not apply if A shows that A did not contravene the provision.[69]Guidance on the burden of proof was given by the Court of Appeal in Igen v Wong [2005] ICR 931. This guidance has subsequently been approved by the Court of Appeal in Madarassay v Nomura International plc [2007] ICR 867 and by the Supreme Court in Hewage v Grampian Health Board [2012] ICR 1054 (at paras 22- 32).[70]The burden of proof starts with the Claimant. It is for the Claimant to prove facts from which the Tribunal could infer, in the absence of a satisfactory explanation, that his treatment was in part the result of his race.[71]In order for the burden of proof to transfer from the Claimant to the Respondent, it is well established that it is insufficient for the Claimant merely to show a difference in status and detriment treatment (see Madarassay at paragraph 54). To shift the burden of proof a Claimant must also prove something more. That is, in the present case the Claimant must prove facts from which the Tribunal could infer that there is a connection between his race or his religion and his treatment, in the absence of a non-discriminatory explanation.[72]If such facts are established, then the burden of proof transfers to the Respondent to establish on the balance of probabilities that the protected characteristic formed no part whatsoever of the reasoning for the Claimant’s treatment.[73]The burden of proof provisions will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the Tribunal is able to make positive findings on the evidence one way or another (Hewage v Grampian Health Board [2012] ICR 1054 per Lord Hope at paragraph 32).[74]In Laing v Manchester City Council [2006] ICR 1519, Elias J said: “The focus of the Tribunal’s analysis must at all times be the question whether or not they can properly and fairly infer race discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter. It is not improper for a Tribunal to say, in effect, ‘there is a nice question as to whether or not the burden has shifted but we are satisfied here that even if it has, the Employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race’”[75]In Field v Steve Pye & Co (KI) Limited [2022] IRLR 948 HHJ Tayler said this at paragraphs 41 to 45: “41. If there is evidence that could realistically suggest that there was discrimination it is not appropriate to just add that evidence into the balance and then conduct an overall assessment, on the balance of probabilities, and make a positive finding that there was a non-discriminatory reason for the treatment. To do so ignores the prior sentence in Hewage that the burden of proof requires careful consideration if there is room for doubt.42. Where there is significant evidence that could establish that there has been discrimination it cannot be ignored. In such a case, if the employment tribunal moves directly to the reason why question, it should generally explain why it has done so and why the evidence that was suggestive of discrimination was not considered at the first stage in an Igen analysis. Where there is evidence that suggests there could have been discrimination, should an employment tribunal move straight to the reason why question it could only do so on the basis that it assumed that the claimant had passed the stage one Igen threshold so that in answering the reason why question the respondent would have to prove that the treatment was in no sense whatsoever discriminatory, which would generally require cogent evidence. In such a case the employment tribunal would, in effect, be moving directly to paras [10]–[13] of the Igen guidelines.43. Although it is legitimate to move straight to the second stage, there is something to be said for an employment tribunal considering why it is choosing that option. If at the end of the hearing, having considered all of the evidence, the tribunal concludes that there is nothing that could suggest that discrimination has occurred and the employer has established a nondiscriminatory reason for the impugned treatment, there would be no error of law in just answering the 'reason why' question, but it is hard to see what would be gained by doing so, when the tribunal has already concluded that there is no evidence that could establish discrimination, which would result in the claim failing at the first stage. There is much to be said for making that finding and then going on to say that, in addition, the respondent's nondiscriminatory reason for the treatment was accepted.44. If having heard all of the evidence, the tribunal concludes that there is some evidence that could indicate discrimination but, nonetheless, is fully convinced that the impugned treatment was in no sense whatsoever because of the protected characteristic, it is permissible for the employment tribunal to reach its conclusion at the second stage only. But again, it is hard to see what the advantage is. Where there is evidence that could indicate discrimination there is much to be said for properly grappling with the evidence and deciding whether it is, or is not, sufficient to switch the burden of proof. That will avoid a claimant feeling that the evidence has been swept under the carpet. It is hard to see the disadvantage of stating that there was evidence that was sufficient to shift the burden of proof but that, despite the burden having been shifted, a non-discriminatory reason for the treatment has been made out.45. Particular care should be taken if the reason for moving to the second stage is to avoid the effort of analysing evidence that could be relevant to whether the burden of proof should have shifted at the first stage. This could involve treating the two stages as if hermetically sealed from each other, whereas evidence is not generally like that. It also runs the risk that a claimant will feel that their claim that they have been subject to unlawful discrimination has not received the attention that it merits.” Harassment[76]So far as is material, Section 26 of the Equality Act 2010 is worded as follows: (1) A person (A) harasses another (B) ifa. A engages in unwanted conduct related to a relevant protected characteristic, and b. The conduct has the purpose or effect of – i. Violating B’s dignity, or ii. Creating an intimidating, hostile, degrading, humiliating or offensive environment for B … (4) In deciding whether conduct has the effect referred to in (1)(b), each of the following must be taken into accounta. The perception of B; b. The other circumstances of the case; c. Whether it is reasonable for the conduct to have that effect[77]It is open to a Tribunal to find that conduct was unwanted even if a claimant chooses to stay in employment and even if a claimant chooses not to object whether formally or informally (Munchkins Restaurant Ltd v Karmazyn and others EAT 0359/09). The Equality and Human Rights Commission: Code of Practice on Employment (2011) states as follows: “7.7. Unwanted conduct covers a range of behaviour, including spoken or written words or imagery, graffiti, physical gestures, facial expressions, mimicry, jokes, pranks, acts affecting a person’s surroundings or other physical behaviour. 7.8 The word ‘unwanted’ means essentially the same as ‘unwelcome’ or ‘uninvited’. ‘Unwanted’ does not mean that express objection has to be made to the conduct before it is deemed to be unwanted. A serious one-off incident can also amount to harassment.”[78]When considering whether a comment was related to a protected characteristic under Section 26 Equality Act 2010, this covers a wider category of conduct than conduct “because of a protected characteristic” under Section 13 Equality Act 2010. A broader enquiry is required involving a more intense focus on the context of the offending words or behaviour (Bakkali v Greater Manchester Buses (South) Limited t/a Stage Coach Manchester [2018] UKEAT/0176/17).[79]In Pemberton v Inwood [2018] ICR 1291, Underhill LJ said this at paragraph 88: “In order to decide whether any conduct falling within sub-paragraph (1)(a) has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section (4)(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also, of course, take into account all the other circumstances – sub-section (4)(b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant's dignity or creating an adverse environment for him or her, then it should not be found to have done so.”[80]In assessing whether the conduct met the proscribed threshold, Tribunals should not place too much weight on the timing of any objection (Weeks v Newham College of Further Education UKEAT/0630/11). Whether it was reasonable for the Claimant to regard treatment as amounting to treatment that violates his dignity or has an intimidating, hostile, degrading, humiliating or offensive environment is a matter for factual assessment of the Tribunal having regard to all the relevant circumstances, including the context (Richmond Pharmacology v Dhaliwal [2009] IRLR 336). In that case the EAT said: “Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended.”[81]In Land Registry v Grant (Equality and Human Rights Commission intervening) [2011] ICR 1390 Lord Justice Elias confirmed that: “When assessing the effect of a remark, the context in which it is given is always highly material. Everyday experience tells us that a humorous remark between friends may have a very different effect than exactly the same words spoken vindictively by a hostile speaker. It is not importing intent into the concept of effect to say that intent will generally be relevant to assessing effect. It will also be relevant to deciding whether the response of the alleged victim is reasonable.” Victimisation[82]Section 27 of the Equality Act 2010 is worded as follows :(1) A person victimises another person (B) if A subjects B to a detriment because: (a) B does a protected act; or (b) A believes that B has done, or may do, a protected act(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.[83]In order to succeed with a claim of victimisation, there must be a sufficient causal connection between a protected act and the alleged detriment. Constructive dismissal[84]The Claimant must establish that the Respondent was in fundamental breach of contract and that she resigned in response to the breach thereby accepting it and bringing her employment to an end so as to amount in law to a dismissal. If the Respondent’s conduct either individually or cumulatively in the respects relied upon destroyed or seriously damaged the relationship of trust and confidence without reasonable and proper cause, then this will amount to a fundamental breach of contract. The last event established by the Claimant must contribute to some extent to the course of conduct said to destroy or seriously damage the relationship of trust and confidence. The Claimant must not have acted after that event so as to affirm the continued existence of the contract.[85]A constructive dismissal may be unlawful discrimination or victimisation even if the incident which tipped things over the edge was not itself discrimination or victimisation. Where there is a range of matters that, taken together, amounts to a constructive dismissal, some of which consist of discrimination and some of which do not, the question is whether the discriminatory matters sufficiently influenced the overall repudiatory breach so as to render the constructive dismissal discriminatory (De Lacey v Wechseln Limited (trading as The Andrew Hill Salon) [2021] IRLR 547 at paragraph 69). This is a matter for the judgment of the Tribunal on the facts of each case.[86]In a discriminatory constructive dismissal, time runs for the claim from the date of the acceptance of the repudiatory breach, not from the date or dates of the discriminatory events, if earlier (De Lacey at paragraph 72). Conclusions Constructive dismissal[87]We start with the three factual allegations relied on by the Claimant as part of her constructive unfair dismissal claim that we have not found proven. In relation to [2.1.1.3] we do not find that Ms Crooks instructed the Claimant to raise her complaint about the way that Mr Gregory had spoken to her directly with Mr Gregory. Rather, Ms Crooks had given the Claimant three options. This included informal resolution, a mediated meeting at which the Claimant and Mr Gregory would be present and progressing a formal grievance. Nor did she say that she was not willing to speak to Mr Gregory herself on behalf of the Claimant. She had already spoken to Mr Gregory about the grievance.[88]In relation to [2.1.1.4], Ms Crooks told the Claimant that she herself was not a medical professional. If the Claimant’s doctor was suggesting that she should take time off work on sick leave, then Ms Crooks was saying that she should follow medical advice and go on sick leave. In the context of dissatisfaction that the Claimant had previously raised about her role and given the impact that work appeared to be having on her health, she did question with the Claimant whether this was right job for her. This was a reasonable question to ask in the particular circumstances.[89]In relation to [2.1.1.7], we do not find that there was a failure to deal with the Claimant’s grievance. The Claimant had not submitted a sufficiently clear and detailed complaint in the Teams messages to amount to trigger the grievance process. Whilst it identified that the grievance was against Mr Gregory, it did not identify each of the comments of which she was complaining, did not provide dates and times for those comments, and did not identify those employees who may have witnessed these comments being made. Ms Crooks had concluded the meeting on 8 July 2025 asking the Claimant how she wanted to proceed. It was not clear whether she wanted to pursue a formal grievance or to resolve her concerns by a different route.[90]Therefore, these three matters are rejected as contributing to any extent to a course of conduct amounting to a fundamental breach of the implied term of mutual trust and confidence.[91]However, we have found that the four matters relied on by the Claimant as part of her constructive unfair dismissal complaint at paragraphs [2.1.1.1], [2.1.1.2], [2.1.1.5] and [2.1.1.6] of the List of Issues did take place. We conclude that taken together this conduct was likely to destroy or seriously damage the trust and confidence between the Claimant and the Respondent for the following reasons:a. Mr Gregory’s two comments on 3 June 2024 referring to the menopause by suggesting the Claimant was “going through the change” were insensitive and upsetting to the Claimant. They were made when the Claimant was less resilient that she might otherwise have been, although this was not known by Mr Gregory. Around this time, she had discovered that she was pregnant with an unplanned pregnancy. The comments contributed to some extent to a course of conduct amounting to a breach of the implied term of mutual trust and confidence. By themselves they would not have been sufficient to amount to a breach of that term.b. The decision to place the Claimant on a Performance Improvement Plan, and the way in which this was done, seriously damaged the relationship of trust and confidence. The decision effectively came “out of the blue”. Before this point, the most recent communication she had received about the standard of her work was set out in the letter dated 9 April 2024, awarding her a pay rise. It had noted that she had achieved the stretch targets she had been set as detailed in the four bullet points. It specifically stated that she had worked hard and focussed on getting each of them to a good standard in line with the agreed deadlines. It congratulated her, using the words “well done”.c. Whilst these targets were stated to remain live projects, she had not received any written communication in the subsequent three months suggesting that she was now off target in any of these respects. There is no written evidence she had been set any additional targets or, if so, that she was failing to meet those targets. We have carefully considered the witness evidence of Andrew Gregory. Timekeeping aside, his evidence does not provide any specific examples of how she was failing in the period from April to June 2024, apart from the contents of the Performance Review Plan document itself. In short, timekeeping aside, we are not satisfied that there was any sufficient basis for placing the Claimant on a Performance Review Plan.d. Far from being a supportive process designed to enable the Claimant to succeed in her role, the way the Performance Review Plan was implemented was unreasonable and unfair. The letter inviting her to the meeting was headed “Formal Capability Meeting”. Whilst it contained four headings as to the “areas of concern”, it provided no detail as to the particular concerns. The headings were so vague – “succession planning and training” as to be effectively meaningless. The letter did not attach the Performance Review Plan. This was a document she only saw for the first time at the start of the meeting. As a result, she had no opportunity to prepare for the meeting in any meaningful way. She had no effective opportunity to explain why she may not have logged onto her computer at the start of her shift on the specific dates mentioned; or to provide evidence to defend her performance in the other areas. There appeared to have been no thought given to whether logging on and off times could be used as a sufficiently accurate estimate of arrival and departure times; why there appeared to be no concerns about attendance in April 2024 (even though data from this month had been requested); and whether the Claimant’s miscarriage may have been a partial explanation for late arrivals or early departures in June.e. The Performance Review Plan presented to the Claimant when she arrived at the meeting listed five Task Objectives. These were “Attendance and Lateness”; “Succession Planning”; “Attention to Detail”; “Working Relationships” and “Factory Recruitment”. The very title “Succession Planning” potentially undermined confidence in the Claimant’s role, by implying that part of her role was to plan for what was to happen after she had left.f. So far as the Claimant’s underperformance in relation to “Attention to detail”, no detail was provided. The pre-written document notes that the Claimant needed to “eliminate distractions” but the Respondent was moving her at the same time to the factory office where she was more likely to be distracted by noise, smells and fumes as well as factory staff coming and going.g. “Working Relationships” was not listed as an area of concern in the invitation letter. No detail was provided about the extent of the problem. It was raised for the first time during the meeting. The particular supervisor who had complained about the Claimant was not even identified nor was the nature of his complaint specified in detail. No detail was provided as to how this issue could be fixed.h. So far as “Factory Recruitment” was concerned, this was described in Mr Gregory’s email to Ms Crooks of 11 July 2024 as an “extracurricular activity” [223]; and yet she was criticised in the PIP for her performance on this. It does not appear to feature in her Job Description [76]. There she was only described as the first point of contact in the recruitment of colleagues rather than centrally involved throughout as the Performance Review Plan suggested.i. No timescale was provided for the period of review and no clear objectives were set against any of the task objectives setting out what standard of performance was expected from the Claimant in order that the Performance Review Plan could be lifted. Although the letter inviting the Claimant to the meeting stated that Jodie Crooks would attend as a notetaker, it does not appear that any notes were taken of what was discussed apart from the training and support agreed under each “Task Objective”. As a result, the views expressed by the Claimant were not noted. Between the date of the meeting and the Claimant’s resignation, the Claimant had not been sent any record summarising the outcome of the meeting and what had been decided under each of the headings.j. There did not appear to be an obvious rationale for moving the Claimant from the main office where she had been based for over two years. Although an important aspect of her role had always been to liaise with the Factory Supervisors, she had been doing this on a daily basis up until that point without any difficulty being noted in writing. Her original job description had not been updated. Under that job description she was also required to liaise with other members of staff who would be based in or near the main office.k. The way the move was implemented also damaged the relationship of trust and confidence. There is no evidence that Mr Gregory spoke to the Claimant about the proposed move to invite her views before a decision was taken. As a result, there was no discussion as to whether an alternative office location close to the factory but in a quieter and cleaner environment would have been more appropriate. Rather Ms Crooks referred to the office move in her letter to the Claimant dated 15 July 2024 and Mr Gregory referred to it in his email to her the following day. She was given only two days’ notice of the move and was expected to move all her equipment herself. There was no suggestion that there could be a trial period to see whether the location suitable.l. The environment in the factory office where she had been reassigned was not conducive to efficient working. It was noisy, given that welding was taking place in the factory next door, and at times the door to the factor would be opened. It was smelly, given the smells emanating from the factory. It was dusty. In short, it was a stressful and unpleasant location. There is no evidence that any employee had been previously expected to work from there throughout their working week, either before the Claimant’s redeployment or since. Her role was not comparable to that of a Factory Supervisor, who would be spending the majority of their working day in the factory; and who would be dressed accordingly. Factory Supervisors would only use the factory office where this was necessary to carry out computerbased tasks. They would be accustomed to working in the noisy, smelly and dirty environment of the factory, and would have been dressed accordingly.[92]We consider that these points, taken together, did amount to a fundamental breach of the Claimant’s employment contract. They did destroy the relationship of trust and confidence. There was no reasonable and proper cause to treat the Claimant in this way.[93]Accordingly, the Claimant was entitled to accept this breach by resigning and treat herself as dismissed. We find that the Claimant did so. In so finding, we note that the resignation letter does not make express reference to any of the four points relied upon by the Claimant. However, having heard from the Claimant and specifically heard her explain that the working environment in the factory office was the last straw that prompted her to resign, we accept that she resigned at least in part in response to how she had been treated in the days before her resignation. Although she took advice from ACAS about her resignation, by 22 July 2024 she is unlikely to have been thinking in clear terms and so unlikely to have been expressing her full reasons for resigning in a carefully crafted way. On the day of her resignation, she was signed off work on sick leave with stress for a period of two weeks. This indicates that the wording of the resignation letter should not be regarded as a definitive statement of all matters prompting her to resign. Harassment[94]Whilst we have found that Mr Gregory made two comments on 3 June 2024 along the lines alleged by the Claimant, we do not accept that these comments amounted to harassment. This is because we do not find that the comments had the purpose or the effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant.[95]We take into account the Claimant’s perception. We note that she was upset by the comments at the time. However, we also note that she was not sufficiently upset to make a complaint on the day or for over a month afterwards. She had previously made complaints of discrimination so alleging discrimination against the Respondent was not a new step for her to take. We bear in mind that the Claimant was dealing with an unplanned pregnancy and subsequent miscarriage. She was still attending work and apparently carrying out her full duties. It appears that it was only because Mr Gregory, as she perceived it, had subsequently made other comments to which she objected that she decided to contact HR suggesting a formal grievance alleging discrimination. Given the miscarriage she had experienced early in June 2024, we consider the Claimant was unduly sensitive to any perceived criticisms and so was not demonstrating the resilience she would ordinarily exhibit. This may explain why she reacted as she did and chose to single out these two comments to be the subject of a formal grievance.[96]Most pertinently, we note that staff in the office had spoken about the menopause in the past, prompted by the symptoms that Ms Parnham had herself been experiencing and by Ms Parnham’s desire to foster a culture where menopause symptoms were spoken about more openly. The Claimant had shared with Mr Gregory that she had undergone tests to see if she was undergoing the perimenopause; and had also shared that these tests had proved negative. Therefore, he was not making fun of some aspect of the Claimant’s overall health. The comment itself was not inherently offensive, nor was it made to demean the Claimant or in an attempt to get others to laugh at her. As the Claimant accepts, it does not appear that any others heard the comment. Having regard to the allimportant context, and the guidance in the cases of Richmond Pharmacology v Dhaliwal and Land Registry v Grant, as set out above, it was not reasonable for the Claimant to regard these comments as violating her dignity or creating the environment proscribed by statute.[97]Therefore, the Claimant’s complaints of harassment fail on their merits. It is not necessary to consider whether the Tribunal lacks jurisdiction because of the operation of statutory time limits. Victimisation[98]The Claimant’s communication to Ms Crooks on 5 July 2024 about her proposed formal grievance against Mr Gregory was a protected act. Although she had not used the word discrimination, she had used the phrase “protected characteristic”. Discriminatory treatment is treatment which (in the case of direct discrimination) is less favourable treatment because of a protected act; or (in the case of harassment) relates to a protected characteristic. Therefore, in accordance with Section 27(2)(d) Equality Act 2010, the Claimant’s Teams message amounted to making an allegation (whether or not express) that Mr Gregory had contravened a provision in the Equality Act 2010.[99]Neither of first two alleged acts of victimisation, namely the two comments made by Mr Gregory on 3 June 2024 [5.3.1] [5.3.2] cannot succeed as “a detriment because the Claimant had done a protected act”, because they predate the Claimant’s protected act.[100]We have rejected the factual allegations on which the next two alleged acts of victimisation, namely [5.3.3] and [5.3.4] are based.[101]Next, we consider whether the decision to put the Claimant on a PIP was influenced by this protected act [5.3.5]. We consider that it was so influenced for the following reasons:a. The decision to place the Claimant on a PIP was taken by Mr Gregory.b. As the protected act indicated, it was against Mr Gregory that the Claimant was considering bringing a formal grievance alleging he had committed an act of discrimination.c. Mr Gregory knew the Claimant was considering this, because Ms Crooks had told him. His reaction to learning that the Claimant was accusing him of behaving in this way was that this was “abhorrent”.d. Contrary to Mr Gregory’s evidence, Mr Gregory’s interactions with the Claimant changed at this point. We have accepted he gave her what she described as “the silent treatment”.e. The decision to initiate this process was taken very shortly after the gist of the Claimant’s Teams allegation was communicated to Mr Gregory. It could have been within a matter of a day or two and was no more than a week afterwards.f. The Claimant’s recent performance did not justify placing the Claimant on a PIP. Rather it was imposed “out of the blue”. Additional material was added to the contents of the PIP on 11 July 2025, as Ms Crooks expressed it, “which will support our case further”, suggesting that HR was seeking to build a case that the Claimant had been underperforming.g. Contrary to the Respondent’s evidence, the way that the PIP was applied to the Claimant was not a supportive process to enable her to succeed and get promoted to a managerial role. Rather it was described in the invitation letter as a formal capability process; the Claimant had no effective opportunity to justify the various aspects of her performance which were being reviewed; and it was not clear what the Claimant needed to do to satisfy the Respondent’s objectives going forwards so that the PIP could be lifted. References to succession planning, seemingly for the first time, suggested that her role might in time be replaced.[102]We have reached this conclusion without needing to have regard to the burden of proof. Had we had regard to the burden of proof, we would have found that the Claimant had proved facts from which an inference of victimisation could be drawn in the absence of a non-discriminatory explanation, so as to transfer the burden to the Respondent to disprove victimisation on the balance of probabilities. Given the matters set out in the previous paragraph, we would have found that the Respondent had failed to discharge the burden of proof.[103]In so finding that victimisation has been established, we recognise that the decision to ask the IT department to track the Claimant’s hours was taken before this Teams message was sent on 5 July 2024. That request was made to the IT team on 21 June 2024. However, this decision was made the day after the Claimant had indicated in an email that she wanted to raise a formal grievance against her line manager. The decision is likely to have been triggered by that communication. Several employees were arriving late (as recorded in Mr Gregory’s message to his department sent on the same day), yet the IT department were only asked to track the Claimant’s timekeeping. The likelihood is that the decision to build a case against the Claimant hardened when she provided more details about the nature of the proposed grievance in her Teams message and when this was communicated to Mr Gregory.[104]For similar reasons, we find that the decision to move the Claimant to the factory office [5.3.6] was materially influenced by the Claimant’s protective act. This was also a decision initiated by Mr Gregory at a point where he knew he was the subject of the Claimant’s complaint. It was taken within days of learning of the complaint. Moving the Claimant to an office in another building was consistent with giving the Claimant the silent treatment which had started when he discovered the complaint. There was no obvious rationale for the move and it does not appear that this was part of a more general reorganisation in which any other were also being moved at the same time. It was done without discussion or any suggestion of a trial period. In short, both the decision and the way it was implemented lacked any cogent rationale.[105]We have rejected the Claimant’s contention that there was a failure to deal with her grievance [5.3.7]. The detail in the Teams message dated 5 July 2024 was not sufficient to amount to a grievance.[106]Because the imposition of the PIP and the move to the factory office were important factors in the Claimant’s constructive dismissal and were therefore sufficiently influenced by the Claimant’s protected act, we find that the constructive dismissal was a detriment because the Claimant had done a protected act. Time limits[107]Because it is common ground that both the date of the Claimant’s resignation (22 July 2024) and the date on which her employment ended (22 August 2024) were within three months of the date on which ACAS Early Conciliation was initiated (3 September 2024), there are no relevant time limits that potentially bar the constructive unfair dismissal claim or the complaint that the constructive dismissal was an act of victimisation. The decisions to impose the PIP and to move the Claimant to the factory office (both found to be acts of victimisation) were taken within three months of 3 September 2024. As a result, the Tribunal has jurisdiction to uphold the complaints that the Claimant has established.
Conclusions
[108]Therefore, the Claimant’s constructive dismissal claim, and issues [5.3.5], [5.3.6] and [5.3.8] of the victimisation complaints succeed. The remainder of the victimisation complaints and the harassment complaints fail.[109]There will need to be a Remedy Hearing to decide the remedy to be awarded to the Claimant for the complaints that have succeeded. This will be listed with a time estimate of 1 day and arranged to take place early in 2026 on a day which is convenient to the Tribunal and to the parties.